Excerpt: - .....to be seriously pressed before ramachandra iyer, officiating chief justice, that the endorsement dated 16th april, 1955, was really made in march. no contention of that kind was apparently advanced, and the learned officiating chief justice takes it as established that the payment was on 16th april, 1955. in the light of that fact, i would agree that it was really not open to the learned district judge to proceed to assess the matter afresh, and to come to a conclusion that the endorsement was in march. hence, on this aspect, the suit is not time-barred as against the second defendant. there remains only the question whether the payment by the first defendant on 10th august, 1953, must be deemed to have been within the knowledge of the second defendant, and to have been acquiesced in.....

Judgment:

M. Anantanarayanan, C.J.

1. This is a singularly disquieting case, because of the delays of the judicial process revealed in the protracted history of this simple suit upon a negotiable instrument against two defendants. That apart, I may also add that the revision is pressed only as against the second defendant ,one of the two co-promisors, and that he has not appeared before this Court in spite of notice served, to contest the revision.

2. It is an unfortunate fact that the suit was instituted on a lost promissory note. Though there is considerable evidence with regard to the contents of this note and the endorsements appearing thereon, nevertheless, the undeniable fact that the note is not available, does raise some difficulty with regard to one incidental issue, viz., the actual date of one endorsement of payment which, according to the plaintiff, was on 16th April, 1955. The relevant facts are as follows:

3. The note itself was executed on 19th May, 1951 by both the defendants as co-promisors. The learned District Judge of East Thanjavur has now held, by the judgment in Appeal Suit No. 114 of 1958, after a remand of this proceeding by Ramachandra Iyer, Officiating Chief Justice, in C.R.P. No. 1089 of 1960, that the two defendants were not agents of each other, as contended by the plaintiff. I shall accept this finding, for purposes of the subsequent discussion. On 10th August, 1953, the first defendant made a payment of Rs. 10 towards the suit debt, and endorsed and signed the payment. Since this is within three years of the date of execution, it would certainly be an acknowledgment of liability binding on the first defendant, and extending the period of limitation under Sections 19 and 20 of the Limitation Act.

4. The second defendant made a payment on 26th July, 1954, and endorsed and signed the recital of the payment. It will at once be seen that this endorsement is beyond the period of three years from the date of execution of the note, viz., after 19th May, 1951. Hence, this endorsement may not, ex facie, serve to maintain the instrument as still within time, as against the second defendant.

5. But learned Counsel for the plaintiff stresses that the first defendant, the co-promisor, made an endorsement on 10th August, 1953, that this endorsement by the second defendant is within three years of that date, and that the second defendant, by endorsing on 26th July, 1954, must be deemed to have been aware of the part payment by his co-promisor on 10th August, 1953, and must be deemed to have acquiesced in it.

6. There is another payment on 16th April, 1955, and the suit was instituted on 15th April, 1958. There was the contention that this last payment, by the second defendant, on 16th April, 1955, was really made by him in March, 1955. If that was correct, the suit against the second defendant would, again, be time barred, as it would not be instituted within three years of this last endorsement. But, on this aspect, learned Counsel for the revision petitioner appears to be justified in his contention that in C.R.P. No. 1089 of 1960 it was never sought to be seriously pressed before Ramachandra Iyer, Officiating Chief Justice, that the endorsement dated 16th April, 1955, was really made in March. No contention of that kind was apparently advanced, and the learned Officiating Chief Justice takes it as established that the payment was on 16th April, 1955. In the light of that fact, I would agree that it was really not open to the learned District Judge to proceed to assess the matter afresh, and to come to a conclusion that the endorsement was in March. Hence, on this aspect, the suit is not time-barred as against the second defendant. There remains only the question whether the payment by the first defendant on 10th August, 1953, must be deemed to have been within the knowledge of the second defendant, and to have been acquiesced in by the second defendant, because of the endorsement by the second defendant, following a part-payment on 26th July, 1954. Ramachandra Iyer, Officiating Chief Justice, thought that it was at least a strong circumstance probabilising the knowledge and acquiescence. Actually, there is an authority of this Court in Rangasamy Aiyangar v. Somasundaram Chettiar : (1928)54MLJ150 , where a learned single Judge of this Court has held, under very similar circumstances, that a person who made a second endorsement, more than three years after the date of the document, but within three years of an endorsement of part payment by a co-promisor, must, by his conduct, 'be deemed to have ratified the first payment.' Applying this principle, it appears to be clear that the endorsement by the second defendant dated 26th July, 1954, can also be relied on for purposes of limitation, and that the suit is consequently in time.

7. There is no other point involved in the suit. The averment of discharge having been negatived at an earlier stage of the protracted history of the litigation, the revision is pressed only as against the second defendant. It is allowed, and there will now be a decree against the second defendant for the suit amount with costs throughout.